iPhone SDK Agreement Internal Use Only; No Redistribution PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SOFTWARE. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND APPLE. IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS, CLICK THE “AGREE” BUTTON OR CHECK THE BOX DISPLAYED AT THE END OF THIS AGREEMENT IF YOU ARE READING THIS ON AN APPLE WEBSITE. BY CLICKING “AGREE”, CHECKING THE BOX OR BY DOWNLOADING, USING OR COPYING ANY PART OF THIS SDK, YOU ARE AGREEING ON YOUR OWN BEHALF AND/OR ON BEHALF OF YOUR COMPANY TO THE TERMS AND CONDITIONS STATED BELOW. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU CANNOT USE THIS SDK. DO NOT DOWNLOAD OR USE THIS SDK IN THAT CASE. 1.
Whenever capitalized in this Agreement: “Agreement” means this iPhone SDK Agreement. “App Store” means an electronic store and its storefronts branded, and owned and/or controlled by Apple or an affiliate of Apple. “Apple” means Apple Inc., a California corporation with its principal place of business at One Infinite Loop, Cupertino, California 95014, U.S.A. “APN API” means the Documented API that enables transmission and delivery of a message to end users within Your Application in accordance with the terms of the applicable iPhone Developer Program Agreement. “Application” means one or more software programs developed by You in compliance with the Documentation and the Program Requirements, under Your own trademark or brand, and for specific use with an iPhone OS Product, including bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases and new versions of such software programs. “Authorized Users” means Your employees and contractors or, if You are an educational institution, Your faculty and staff who (a) each have an active and valid Registered iPhone Developer account with Apple, (b) have a demonstrable need to know or use the SDK in order to develop and test Applications, and (c) to the extent such individuals will have access to Apple Confidential Information, each have written and binding agreements with You to protect the unauthorized use and disclosure of such Apple and third party confidential information. “Documentation” means any technical or other specifications or documentation that Apple may provide to You for use in connection with the SDK. “Documented API(s)” means the Application Programming Interface(s) documented by Apple in published Apple Documentation and which are contained in the SDK. “FOSS” (Free and Open Source Software) means any software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and/or derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivatives work, or to be redistributed free of charge, including without limitation software distributed under the GNU General Public License or GNU Lesser/Library GPL. "In App Purchase API” means the Documented API that enables additional content, functionality or services to
be purchased and delivered or made available for use within a fee-based Application that is distributed in accordance with the terms of the applicable iPhone Developer Program Agreement. “iPod Accessory Protocol” means Apple’s proprietary protocol for communicating with iPhone OS Products and which is licensed under Apple’s Made for iPod and Works with iPhone Program. “iPhone Accessory” means a non-Apple branded hardware device that interfaces, communicates or otherwise interoperates with or controls an iPhone OS Product through the iPod Accessory Protocol. "iPhone Developer Program Agreement" means a separate agreement that may be entered into between You and Apple regarding the provisioning of test devices for Your Applications, and/or submission of Your Application for approval and digital signing by Apple, among other things. “iPhone OS Product” means an Apple-branded product that runs Apple’s iPhone operating system software (or any successor thereto). “Made for iPod and Works with iPhone Licensing Program” or “MFi Program” means a separate Apple program that offers iPhone Accessory developers, among other things, a license to incorporate certain Apple technology into a hardware device to interface, communicate or otherwise interoperate with or control iPhone OS Products. “Maps API” means the Documented API that enables You to add mapping functionality to Applications. “Program Requirements” mean the technical, human interface, design, product category, security, performance, and other criteria and requirements specified by Apple, including but not limited to the current set of requirements set forth in Section 3.3, as they may be modified from time to time by Apple in accordance with this Agreement. “SDK” (Software Development Kit) means the Documentation, software (source code and object code), applications, sample code, simulator, tools, libraries, APIs, data, files, and materials provided by Apple for use by You in connection with Your Application development, and includes any Updates that may be provided by Apple to You pursuant to this Agreement. “Term” means the period described in Section 7. “Updates” means bug fixes, updates, upgrades, modifications, enhancements, supplements, and new releases or versions of the SDK, or to any part of the SDK. “You” or “Your” means the person(s) or entity using the SDK or otherwise exercising rights under this Agreement. If You are entering into this Agreement on behalf of Your company, organization, educational institution, or an agency, instrumentality, or department of the federal government, “You” or “Your” refers to your company, organization, educational institution or agency, instrumentality, or department of the federal government as well.
SDK Internal Use License and Restrictions
2.1 Confidential Nature of Pre-Release SDK From time to time during the Term, Apple may provide You with pre-release versions of the SDK that constitute Apple Confidential Information and are subject to the confidentiality obligations of this Agreement. Such prerelease versions of the SDK should not be relied upon to perform in the same manner as a final-release commercial-grade product, nor should they be used with data that is not sufficiently and regularly backed up. Distribution of Applications created with the SDK is not permitted absent a separate agreement with Apple. 2.2 Permitted Uses and Restrictions Subject to the terms and conditions of this Agreement, Apple hereby grants You during the Term, a limited, nonexclusive, personal, revocable, non-sublicensable and non-transferable license to: (a) Install a reasonable number of copies of the SDK on Apple-branded computers owned or controlled by You, to be used internally by You or Your Authorized Users for the sole purpose of developing or testing Applications; and
(b) Make and distribute a reasonable number of copies of the Documentation to Authorized Users for their internal use only and for the sole purpose of developing or testing Applications. You understand that Applications developed using these SDK materials cannot be installed or used on an iPhone OS Product unless You enter into a separate iPhone Developer Program Agreement and Your Application is signed with an Apple-issued certificate. Apple reserves the right to approve or withhold approval and signing of any Application at its sole discretion. Apple shall not be responsible for any costs, expenses or other liabilities You may incur as a result of Your Application development or use of this SDK. 2.3 Copies You agree to retain and reproduce in full the Apple copyright, disclaimers and other proprietary notices (as they appear in the SDK and Documentation provided) in all copies of the SDK and Documentation that you are permitted to make under this Agreement. 2.4 Ownership Apple retains all rights, title, and interest in and to the SDK and any Updates it may make available to You under this Agreement. You agree to cooperate with Apple to maintain Apple's ownership of the SDK, and, to the extent that You become aware of any claims relating to the SDK, You agree to use reasonable efforts to promptly provide notice of any such claims to Apple. The parties acknowledge that this Agreement does not give Apple any ownership interest in Your Applications. 2.5 No Other Permitted Uses You agree not to rent, lease, lend, upload to or host on any website or server, sell, redistribute, or sublicense the SDK, in whole or in part, or to enable others to do so. You may not use the SDK for any purpose not expressly permitted by this Agreement. You agree not to install, use or run the SDK on any non-Apple-branded computer, or to enable others to do so. You may not and You agree not to, or to enable others to, copy (except as expressly permitted under this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, decrypt, or create derivative works of the SDK or any services provided by the SDK, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law, or to the extent as may be permitted by licensing terms governing use of open-sourced components or sample code included with the SDK). You agree not to exploit any services provided by the SDK in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. Any attempt to do so is a violation of the rights of Apple and its licensors of the SDK or services provided by the SDK. If You breach any of the foregoing restrictions, You may be subject to prosecution and damages. All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied are granted by Apple, by implication, estoppel, or otherwise. This Agreement does not grant You any rights to use any trademarks, logos or service marks belonging to Apple, including but not limited to the iPhone or iPod word marks. If You make reference to any Apple products or technology or use Appleâ€™s trademarks, You agree to comply with the published guidelines at http://www.apple.com/legal/trademark/guidelinesfor3rdparties.html, as modified by Apple from time to time. 2.6 Updates; No Support or Maintenance Apple may extend, enhance, or otherwise modify the SDK at any time without notice, but Apple shall not be obligated to provide You with any Updates to the SDK. If Updates are made available by Apple, the terms of this Agreement will govern such Updates, unless the Update is accompanied by a separate license in which case the terms of that license will govern. Apple is not obligated to provide any maintenance, technical or other support for the SDK. You acknowledge that Apple has no express or implied obligation to announce or make available any Updates of the SDK to anyone in the future. Should an Update be made available, it may have APIs, features, services or functionality that are different from those found in the SDK licensed hereunder.
3.1 General You certify to Apple and agree that: (a) You are of the legal age of majority in the jurisdiction in which You reside (at least 18 years of age in many countries) and have the right and authority to enter into this Agreement on Your own behalf, or if You are entering into this Agreement on behalf of Your company, organization, educational institution, or agency, instrumentality, or department of the federal government, that You have the right and authority to legally bind such entity or organization to the terms and obligations of this Agreement;
(b) All information provided to Apple by You will be current, true, accurate and complete;(c) You will comply with the terms of and fulfill Your obligations under this Agreement and You agree to monitor and be responsible for Your Authorized Users’ use of the SDK and their compliance with the terms of this Agreement; and (d) You will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by You and Authorized Users in connection with the SDK, Your Applications and Your related development efforts. 3.2 Use of the SDK As a condition to using the SDK, You agree that: (a) You will only use the SDK for the purposes and in the manner expressly permitted by this Agreement and in accordance with all applicable laws and regulations; (b) You will not use the SDK for any unlawful or illegal activity, nor to develop any Application which would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act; (c) Your Application will be developed in compliance with the Documentation and the Program Requirements, the current set of which is set forth in Section 3.3 below; (d) To the best of Your knowledge and belief, Your Application does not and will not violate, misappropriate, or infringe any Apple or third party copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other proprietary or legal rights (e.g. musical composition or performance rights, video rights, photography or image rights, logo rights, third party data rights, etc. for content and materials that may be included in Your Application); and (e) You will not, through use of the SDK or otherwise, create any Application or other program that would disable, hack or otherwise interfere with any security, digital signing, digital rights management, content protection, verification or authentication mechanisms implemented in or by the iPhone operating system software, this SDK, or other Apple software, services or technology, or enable others to do so. 3.3 Program Requirements for Applications Any Application developed using this SDK must comply with these criteria and requirements, as they may be modified by Apple from time to time: APIs and Functionality: 3.3.1 Applications may only use Documented APIs in the manner prescribed by Apple and must not use or call any private APIs. 3.3.2 An Application may not itself install or launch other executable code by any means, including without limitation through the use of a plug-in architecture, calling other frameworks, other APIs or otherwise. No interpreted code may be downloaded or used in an Application except for code that is interpreted and run by Apple's Documented APIs and built-in interpreter(s). 3.3.3 Without Apple’s prior written approval, an Application may not provide, unlock or enable additional features or functionality through distribution mechanisms other than the App Store. 3.3.4 An Application may only read data from or write data to an Application's designated container area on the device, except as otherwise specified by Apple. User Interface and Data: 3.3.5 by Apple.
Applications must comply with the Human Interface Guidelines and other Documentation provided
3.3.6 Any form of user or device data collection, or image, picture or voice capture or recording performed by the Application (collectively “Recordings”), and any form of user data, content or information processing, maintenance, uploading, syncing, or transmission performed by the Application (collectively "Transmissions") must comply with all applicable privacy laws and regulations as well as any Apple program requirements related to such aspects, including but not limited to any notice or consent requirements. In particular, a reasonably conspicuous audio, visual or other indicator must be displayed to the user as part of the Application to indicate that a Recording is taking place. Local Laws, User Privacy, Location Services and Mapping:
3.3.7 Applications must comply with all applicable criminal, civil and statutory laws and regulations, including those in any jurisdictions in which Your Applications may be offered or made available. In addition, for Applications that use location-based APIs or that collect, transmit, maintain, process, share, disclose or otherwise use a user's personal information or data: - You and the Application must comply with all applicable privacy and data collection laws and regulations with respect to any collection, transmission, maintenance, processing, use, etc. of the user's location data or personal information by the Application. - Applications may not be designed or marketed for the purpose of harassing, abusing, stalking, threatening or otherwise violating the legal rights (such as the rights of privacy and publicity) of others. - Applications may not perform any functions or link to any content or use any robot, spider, site search or other retrieval application or device to scrape, retrieve or index services provided by Apple or its licensors, or to collect, disseminate or use information about users for any unauthorized purpose. 3.3.8 For Applications that use location-based APIs, such Applications may not be designed or marketed for automatic or autonomous control of vehicles, aircraft, or other mechanical devices; dispatch or fleet management; or emergency or life-saving purposes. In addition:- Applications that offer location-based services or functionality must notify and obtain consent from an individual before his or her location data is being collected, transmitted or otherwise used by the Application. 3.3.9 For Applications that use location-based APIs for real-time route guidance (including, but not limited to, turn-by-turn route guidance and other routing that is enabled through the use of a sensor), You must have an end user license agreement that includes the following notice: YOUR USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE. 3.3.10 Applications must not disable, override or otherwise interfere with any Apple-implemented system alerts, warnings, display panels, consent panels and the like, including, but not limited to, those that are intended to notify the user that the user's location data is being collected, transmitted, maintained, processed or used, or intended to obtain consent for such use. If consent is denied or withdrawn, Applications may not collect, transmit, maintain, process or utilize the user's location data or perform any other actions for which the user’s consent has been denied or withdrawn. 3.3.11 If Your Application accesses the Google Mobile Maps (GMM) service through the Maps API, use of the GMM Service is subject to Google’s Terms of Service which will be set forth at: http://code.google.com/apis/ maps/terms/iPhone.html. If You do not accept such Google Terms of Service, including, but not limited to all limitations and restrictions therein, You may not use the GMM service in Your Application. You acknowledge and agree that use of the GMM Service in Your Application will constitute Your acceptance of such Terms of Service. Content and Materials 3.3.12 Any master recordings and musical compositions embodied in Your Application must be whollyowned by You or licensed to You on a fully paid-up basis and in a manner that will not require the payment of any fees, royalties and/or sums by Apple to You or any third party. In addition, if Your Application will be distributed outside of the United States, any master recordings and musical compositions embodied in Your Application (a) must not fall within the repertoire of any mechanical or performing/communication rights collecting or licensing organization now or in the future and (b) if licensed, must be exclusively licensed to You for Your Application by each applicable copyright owner. 3.3.13 If Your Application includes or will include any other content, You must either own all such content or have permission from the content owner to use it in Your Application. 3.3.14 Applications may be rejected if they contain any content or materials of any kind (text, graphics, images, photographs, sounds, etc.) that in Apple’s reasonable judgment may be found objectionable, for example, materials that may be considered obscene, pornographic, or defamatory.
3.3.15 Applications must not contain any malware, malicious or harmful code, program, or other internal component (e.g. computer viruses, trojan horses, “backdoors”) which could damage, destroy, or adversely affect other software, firmware, hardware, data, systems, services, or networks. 3.3.16 If Your Application includes any FOSS, You agree to comply with all applicable FOSS licensing terms. You also agree not to use any FOSS in the development of Your Application in such a way that would cause the non-FOSS portions of the SDK to be subject to any FOSS licensing terms or obligations. 3.3.17 Your Application may include promotional sweepstake or contest functionality provided that You are the sole sponsor of the promotion and that You and Your Application comply with any applicable laws and fulfill any applicable registration requirements in the country or territory where You make Your Application available and the promotion is open. You agree that You are solely responsible for any promotion and any prize, and also agree to clearly state in binding official rules for each promotion that Apple is not a sponsor of, or responsible for conducting, the promotion. 3.3.18 Your Application may include a direct link to a page on Your web site where you include the ability for an end user to make a charitable contribution, provided that You comply with any applicable laws (which may include providing a receipt), and fulfill any applicable regulation or registration requirements, in the country or territory where You enable the charitable contribution to be made. You also agree to clearly state that Apple is not the fundraiser. In App Purchase API: 3.3.19 Access to the functionality provided by the In App Purchase API requires You to enter into the applicable iPhone Developer Program Agreement. iPhone Accessories: 3.3.20 Your Application may interface, communicate, or otherwise interoperate with or control an iPhone Accessory (as defined above) through Bluetooth or Apple’s 30-pin dock connector only if You have obtained a license for such iPhone Accessory under Apple's MFi Program. Regulatory Compliance for Health, Medical and Related Apps: 3.3.21 You will fulfill any applicable regulatory requirements, including full compliance with all applicable laws, regulations, and policies related to the manufacturing, marketing, sale and distribution of Your Application in the United States, and in particular the requirements of the U.S. Food and Drug Administration ("FDA"), and the laws, regulations and policies of any other applicable regulatory bodies in any countries or territories where You use or make Your Application available. However, You agree that you will not seek any regulatory marketing permissions or make any determinations that may result in any Apple products being deemed regulated or that may impose any obligations or limitations on Apple. You represent and warrant that You will fully comply with any applicable laws, regulations, and policies, including but not limited to all FDA laws, regulations and policies, related to the manufacturing, marketing, sale and distribution of Your Application in the United States, as well as in other countries or territories where You plan to make Your Application available in accordance with the applicable iPhone Developer Program Agreement. You also represent and warrant that You will market Your Application only for its cleared or approved intended use/ indication for use, and only in strict compliance with applicable regulatory requirements. You agree to promptly notify Apple in accordance with the procedures set forth in Section 10.6 of any complaints or threats of complaints regarding Your Application in relation to any such regulatory requirements. Cellular Network: 3.3.22 If an Application requires or will have access to the cellular network, then additionally such Application: - Must comply with Apple's best practices and other guidelines on how Applications should access and use the cellular network; and - Must not in Apple's reasonable judgment excessively use or unduly burden network capacity or bandwidth.
3.3. 23 Because some mobile network operators may prohibit or restrict the use of Voice over Internet Protocol (VoIP) functionality over their network, such as the use of VoIP telephony over a cellular network, and may also impose additional fees, or other charges in connection with VoIP, You agree to inform end-users to check the terms of agreement with their operator. APN (Apple Push Notification service): 3.3.24 Access to the service provided by the APN API requires You to enter into the applicable iPhone Developer Program Agreement. Additional Services: 3.3.25 From time to time, Apple may provide access to additional services for You to use in connection with Your Applications. Some of these additional services may be subject to separate terms and conditions in addition to this Agreement. If You elect to use such services, Your usage will also be subject to those separate terms and conditions. In addition, such services may not be available in all languages or in all countries. Apple makes no representation that such services are appropriate or available for use in any particular location. To the extent You choose to access such services, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Certain services made accessible to You through the SDK may be provided by third parties. You acknowledge that Apple will not have any liability or responsibility to You or any other person (including to any end user) for any third-party services or for any Apple services. Apple and its licensors reserve the right to change, suspend, remove, or disable access to any services at any time. In no event will Apple be liable for the removal of or disabling of access to any such services.
Changes to Program Requirements or Terms
Apple may change the Program Requirements or the terms of this Agreement at any time. In order to continue using the SDK, You must accept and agree to the new Program Requirements and/or new terms of this Agreement. If You do not agree to new Program Requirements or new terms, Your use of the SDK will be suspended or terminated by Apple. You agree that Your acceptance of such new Agreement terms or Program Requirements may be signified electronically, including without limitation, by Your checking a box or clicking on an “agree” or similar button.
5.1 Information Deemed Apple Confidential You agree that all pre-release versions of the SDK (including pre-release Documentation) and any terms and conditions contained herein that disclose pre-release features of the SDK will be deemed “Apple Confidential Information”; provided however that upon the commercial release of the SDK the terms and conditions that disclose pre-release features of the SDK will no longer be confidential. Other non-public information disclosed by Apple to You in connection with this Agreement will be deemed Apple Confidential Information under this Agreement only if it is identified or marked as "Confidential" if disclosed in writing, or is designated as being confidential at the time of disclosure, if disclosed orally or visually. Notwithstanding the foregoing, Apple Confidential Information will not include: (i) information that is generally and legitimately available to the public through no fault or breach of Yours, (ii) information that is generally made available to the public by Apple, (iii) information that is independently developed by You without the use of any Apple Confidential Information, (iv) information that was rightfully obtained from a third party who had the right to transfer or disclose it to You without limitation, or (v) any FOSS included in the SDK and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such FOSS. 5.2 Obligations Regarding Apple Confidential Information You agree to protect Apple Confidential Information using at least the same degree of care that You use to protect Your own confidential information of similar importance, but no less than a reasonable degree of care. You agree to use Apple Confidential Information solely for the purpose of exercising Your rights and performing Your obligations under this Agreement and agree not to use Apple Confidential Information for any other purpose, for Your own or any third party’s benefit, without Apple's prior written consent. You further agree not to disclose or disseminate Apple Confidential Information to anyone other than: (i) those of Your employees and contractors, or those of Your faculty and staff if You are an educational institution, who have a need to know and who are bound by a written agreement that prohibits unauthorized use or disclosure of the Apple Confidential
Information; or (ii) except as otherwise agreed or permitted in writing by Apple. You may disclose Apple Confidential Information to the extent required by law, provided that You take reasonable steps to notify Apple of such requirement before disclosing the Apple Confidential Information and to obtain protective treatment of the Apple Confidential Information. You acknowledge that damages for improper disclosure of Apple Confidential Information may be irreparable; therefore, Apple is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies. 5.3 Information Submitted to Apple Not Deemed Confidential Apple works with many application and software developers and some of their products may be similar to or compete with Your Applications. Apple may also be developing its own similar or competing applications and products or may decide to do so in the future. To avoid potential misunderstandings, Apple cannot agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that You may provide in connection with this Agreement, including information about Your Application (such disclosures will be referred to as “Licensee Disclosures”). You agree that any such Licensee Disclosures will be non-confidential. Apple will be free to use and disclose any Licensee Disclosures on an unrestricted basis without notifying or compensating You. You release Apple from all liability and obligations that may arise from the receipt, review, use, or disclosure of any portion of any Licensee Disclosures. Any physical materials You submit to Apple will become Apple property and Apple will have no obligation to return those materials to You or to certify their destruction. 5.4 Press Releases and Other Publicity You may not issue any press releases or make any other public statements regarding this Agreement, its terms and conditions, or the relationship of the parties without Apple’s express prior written approval, which may be withheld at Apple's discretion.
To the extent permitted by applicable law, You agree to indemnify, defend and hold harmless Apple, its directors, officers, employees, independent contractors and agents (each an "Apple Indemnified Party") from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation attorneys fees and court costs) (collectively "Losses") incurred by an Apple Indemnified Party as a result of Your breach of this Agreement, a breach of any certification, covenant, representation or warranty made by You in this Agreement, any claims that Your Applications violate or infringe any third party intellectual property or proprietary rights, or otherwise related to or arising from Your use of the SDK, Your Application(s) or Your development of Applications. You acknowledge that the SDK is not intended for use in the development of Applications in which errors or inaccuracies in the content, functionality, services, data or information provided by the Application or the failure of the Application could lead to death, personal injury, or severe physical or environmental damage, and, to the extent permitted by law, You hereby agree to indemnify, defend and hold harmless each Apple Indemnified Party from any Losses incurred by such Apple Indemnified Party by reason of any such use. In no event may You enter into any settlement or like agreement with a third party that affects Apple's rights or binds Apple in any way, without the prior written consent of Apple.
Term and Termination
7.1 Term The term of this Agreement shall commence upon Your installation or use of this SDK and will terminate automatically without notice from Apple upon the first to occur of: (a) Your installation or use of a subsequent version of the SDK released by Apple; or (b) termination as set forth in Section 7.2 below. 7.2 Termination This Agreement and all rights granted by Apple hereunder will automatically terminate without notice from Apple if You or any of Your Authorized Users fail to comply with any term(s) of this Agreement. Apple may also terminate this Agreement, or suspend Your rights to use the SDK, if You fail to accept any new Program Requirements or Agreement terms as described in Section 4. Either party may terminate this Agreement for its convenience, for any reason or no reason, effective 30 days after providing the other party with written notice of its intent to terminate. 7.3 Effect of Termination Upon the termination of this Agreement for any reason, You agree to immediately cease all use of the SDK and
erase and destroy all copies, full or partial, of the SDK and all copies of Apple Confidential Information in Your and Your Authorized Users' possession or control. At Apple’s request, You agree to provide written certification of such destruction to Apple. The provisions of Sections 1, 2.4, 2.5, 3.1(d), 3.2 (d), 3.2(e), 5, 6, 7, 8, 9 and 10 will survive any termination of this Agreement. Apple will not be liable for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy Apple may have, now or in the future.
The SDK may contain inaccuracies or errors that could cause failures or loss of data and it may be incomplete. Apple may, through the SDK, provide or make available services (collectively the “Services”). Apple and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Apple be liable for the removal of or disabling of access to any such Services. Apple may also impose limits on the use of or access to certain Services, in any case and without notice or liability. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SDK AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THE SDK AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLE AND APPLE'S LICENSORS (COLLECTIVELY REFERRED TO AS "APPLE" FOR THE PURPOSES OF SECTIONS 8 AND 9) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SDK AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SDK, THAT THE SDK OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SDK OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SDK OR SERVICES WILL BE CORRECTED, OR THAT THE SDK OR SERVICES WILL BE COMPATIBLE WITH FUTURE APPLE PRODUCTS OR SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLE OR AN APPLE AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SHOULD THE SDK OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Apple nor any of its licensors guarantees the availability, accuracy, completeness, reliability, or timeliness of location data or any other data displayed by any Services.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL APPLE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, YOUR USE OR INABILITY TO USE THE SDK OR SERVICES, OR YOUR DEVELOPMENT EFFORTS, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF APPLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. In no event shall Apple’s total liability to You under this Agreement for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00).
General Legal Terms
10.1 Third Party Notices Portions of the SDK utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the SDK, and Your use of such material is governed by their respective terms. 10.2 Consent to Collection and Use of Non-Personal Data You agree that Apple and its subsidiaries may collect and use technical and related information, including but not limited to information about Your Applications, computer, system software, other software and peripherals, that is gathered periodically to facilitate the provision of software updates and other services to You (if any)
related to the SDK, and to verify compliance with the terms of this Agreement. Apple may use this information, as long as it is in a form that does not personally identify You, to improve the SDK, our products or to provide services or technologies to You and our customers. 10.3 Assignment This Agreement may not be assigned, nor may any of Your obligations under this Agreement be delegated, in whole or in part, by You by operation of law, merger, or any other means without Apple’s express prior written consent and any attempted assignment without such consent will be null and void. 10.4 Relationship of Parties This Agreement will not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between You and Apple, and You will not represent to the contrary, whether expressly, by implication, appearance or otherwise. This Agreement is not for the benefit of any third parties. 10.5 Independent Development Nothing in this Agreement will impair Apple's right to develop, acquire, license, market, promote, or distribute products or technologies that perform the same or similar functions as, or otherwise compete with, Your Applications or any other products or technologies that You may develop, produce, market, or distribute. 10.6 Notices Any notices relating to this Agreement shall be in writing. Notices will be deemed given by Apple when sent to You at the email address You provided as part of Your Registered iPhone Developer sign-up process. Notices to Apple will be deemed given (a) when delivered personally, (b) three business days after having been sent by commercial overnight carrier with written proof of delivery, and (c) five business days after having been sent by first class or certified mail, postage prepaid, to this Apple address: iPhone SDK Licensing, Apple Inc., 12545 Riata Vista Circle, MS 198-3SWL, Austin, TX 78727, USA. You consent to receive notices by email and agree that any such notices that Apple sends You electronically will satisfy any legal communication requirements. A party may change its email or mailing address by giving the other written notice as described above. 10.7 Severability If a court of competent jurisdiction finds any clause of this Agreement to be unenforceable for any reason, that clause of this Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. However, if applicable law prohibits or restricts You from fully and specifically complying with the Sections of this Agreement entitled "SDK Internal Use License and Restrictions" or "Your Obligations" or prevents the enforceability of either of those Sections, this Agreement will immediately terminate and You must immediately discontinue any use of the SDK as described in the Section entitled “Term and Termination.” 10.8 Waiver and Construction Failure by Apple to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any laws or regulations that provide that the language of a contract will be construed against the drafter will not apply to this Agreement. Section headings are for convenience only and are not to be considered in construing or interpreting this Agreement. 10.9 Export Control You may not use, export, re-export, import, sell or transfer the SDK except as authorized by United States law, the laws of the jurisdiction in which You obtained the SDK, and any other applicable laws and regulations. In particular, but without limitation, the SDK may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the SDK, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the SDK for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. 10.10 Government End Users The SDK and Documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial
Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. 10.11 Dispute Resolution; Governing Law Any litigation or other dispute resolution between You and Apple arising out of or relating to this Agreement, the SDK, or Your relationship with Apple will take place in the Northern District of California, and You and Apple hereby consent to the personal jurisdiction of and exclusive venue in the state and federal courts within that District with respect any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of California, except that body of California law concerning conflicts of law. Notwithstanding the foregoing, if You are an agency, instrumentality or department of the federal government of the United States, then this Agreement shall be governed in accordance with the laws of the United States of America, and in the absence of applicable federal law, the laws of the State of California will apply. Further, and notwithstanding anything to the contrary in this Agreement (including but not limited to Section 6 (Indemnification)), all claims, demands, complaints and disputes will be subject to the Contract Disputes Act (41 U.S.C. §§601-613), the Tucker Act (28 U.S.C. § 1346(a) and § 1491), or the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2401-2402, 2671-2672, 2674-2680), as applicable, or other applicable governing authority. If You (as an entity entering into this Agreement) are a U.S. public and accredited educational institution, then (a) this Agreement will be governed and construed in accordance with the laws of the state (within the U.S.) in which Your educational institution is domiciled, except that body of state law concerning conflicts of law; and (b) any litigation or other dispute resolution between You and Apple arising out of or relating to this Agreement, the SDK, or Your relationship with Apple will take place in federal court within the Northern District of California, and You and Apple hereby consent to the personal jurisdiction of and exclusive venue of such District unless such consent is expressly prohibited by the laws of the state in which Your educational institution is domiciled. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. 10.12 Entire Agreement; Governing Language This Agreement constitutes the entire agreement between the parties with respect to the use of the SDK licensed hereunder and supersedes all prior understandings regarding such subject matter. This Agreement may be modified only: (a) by a written amendment signed by both parties, or (b) to the extent expressly permitted by this Agreement (for example, by Apple by written or email notice to You). Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any nonEnglish version, the English version of this Agreement shall govern. If You are located in the province of Quebec, Canada, the following clause applies: The parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais. EA0602 Rev. 2/4/10